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Friday, October 11, 2013

AGs Blame Records Delay on Shutdown; Committee Disagrees

In May, City Weekly sought records from the Attorney General’s Office about its investigation into a controversial Utah Transit Authority development project. The office later handed over the investigation to federal investigators because of a perceived conflict of interest. After months of dispute, the office now says that the government shutdown prevents the office from being able to argue its case against releasing records. ---

Editor’s note: This is Part 11 of The Swallow Files, a series of online and print stories examining notes, observations and overlooked elements of the ongoing Utah Attorney General John Swallow scandal. Part 10 looked at whether states that appoint their attorneys general have faced ethics scandals.

Since August, the State Records Committee has been deliberating on City Weekly’s petition for records from the Attorney General’s Office regarding its investigation into alleged insider dealings involving a UTA FrontRunner station in Draper. After City Weekly’s Aug. 30, 2013, story revealed that a former developer in the project, Mark Robbins, still had ties to the project after he’d previously stated he did not, and that former Attorney General Mark Shurtleff had been acting in Robbins' interest during that time, the office turned the investigation over to federal investigators due to the perceived conflict of interest.

The following timeline shows the different arguments presented in City Weekly’s records dispute with the Attorney General's Office with each records committee meeting between August and October:

Aug. 8 Meeting:In City Weekly’s August meeting before the State Records Committee, the body decided that e-mails about and the attorney general’s investigation files into the development were protected as part of an ongoing investigation, but they would review them anyway to decide whether they should be released regardless because of the public’s right to know. The meeting was continued for a month so that the committee could review the e-mails and the investigation file.

Sept. 12 MeetingBy September, the investigation had been handed over to federal investigators, so the Attorney General’s Office decided that federal secrecy rules, which supersede state records laws, applied. The committee then decided to continue the hearing again in October so that City Weekly could prepare an argument as to why the Federal Rules of Criminal Procedure regarding a grand-jury investigation would not apply to the records being sought.

The committee had also been unable to review the Whitewater files because the Attorney General’s Office staff member who was in charge of maintaining the records had gone on an extended vacation during the time that the committee had wanted to review the records.

Oct. 10 MeetingInstead of arguing why federal secrecy rules applied, the Attorney General’s Office told the committee that they were unable to make their argument because of the government shutdown that occurred on Oct. 1. The Attorney General’s Office had had 18 days to communicate with federal investigators before the government shut down, but assistant attorney general Lana Taylor told the committee that she couldn’t confirm that federal secrecy applied to the records because one federal staffer was sick for several weeks and another was furloughed by the government shutdown. She did say there was a secrecy order but couldn’t tell the committee whether it applied to the records City Weekly was seeking, a point that was vexing for committee members.

“It would have been nice if everybody had been able to argue both sides,” said committee member Patricia Smith-Mansfield. “We have a secrecy order, but I haven’t been able to ascertain what is part of the secrecy order.”

Ultimately, the State Records Committee decided that because the Attorney General’s Office had been recused from the investigation, it was therefore not an ongoing investigation at the state level. Absent an argument about why federal secrecy rules should apply, the committee made two decisions, denying City Weekly access to some records and granting access to others.

The committee reversed its earlier decision about the investigation files and ruled that they were properly classified as protected and that they would not be reviewed to see whether they should be made public.

And because federal investigators are now conducting the investigation, the committee decided that there wasn’t enough evidence of a public interest to outweigh the need for the investigative files to be kept private and confidential.

The committee also decided, however, that 29 e-mails were public and could be released. The e-mails City Weekly requested included correspondence between parties interested in the Whitewater/UTA investigation, including Mark Robbins, Mark Shurtleff and UTA’s general counsel Bruce Jones.

The Attorney General’s Office, if it agrees to abide by the committee’s decision, will turn the records over; it also has the option of challenging the issue in court.

The office had previously challenged a decision by the State Records Committee to turn over records; the ensuing court battle lasted for more than a year and a half before City Weekly received records from the office discussing a conflict of interest between former attorney general Mark Shurtleff and now-indicted businessman Jeremy Johnson.